His Majesty's Treasury v (1) Adrian Finch (2) Information Commissioner: [2026] UKUT 406 (AAC)
Summary
The Upper Tribunal held that HM Treasury was entitled to withhold parts of an information request response under section 42 of the Freedom of Information Act 2000. It found that the First-tier Tribunal had erred in law by treating the withheld text as outside legal advice privilege and by rejecting witness evidence without giving the witness an opportunity to respond.
Why it matters
While the case arises from tax policy and FOI disclosure rather than property directly, it reinforces how legal professional privilege can apply to summaries of legal advice within public bodies. Surveyors dealing with public-sector clients, tribunal material or information requests should note the procedural and evidential standards applied when privilege is asserted.
Key points
- Upper Tribunal found section 42 FOIA could apply to summaries of legal advice, not just verbatim advice.
- The First-tier Tribunal was wrong to conclude the text was unprivileged simply because it was not itself legal advice.
- The tribunal also acted unfairly by rejecting the only witness’s evidence without giving an opportunity to address concerns.
- The decision set aside and remade the First-tier Tribunal ruling on the section 42 issue.
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